Boothe v. Farmers' & Traders' Nat. Bank of La Grande
| Citation | 53 Or. 576,98 P. 509 |
| Parties | BOOTHE v. FARMERS' & TRADERS' NAT. BANK OF LA GRANDE. |
| Decision Date | 15 December 1908 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Union County; J.B. Cleland, Judge.
Action by S.S. Boothe against the Farmer's & Trader's National Bank of La Grande. From a judgment for plaintiff defendant appeals. Reversed and remanded, with directions.
This is an action to recover an alleged residue of deposits made by or for the plaintiff with the defendant. In a former action between these parties, instituted for the same purpose, a judgment for the costs and disbursements was rendered against the plaintiff herein, and affirmed on appeal, but with the proviso that the conclusion reached should not prohibit him from recovering whatever might be due. Boothe v Farmers' Nat. Bank, 47 Or. 299, 83 P. 785. Thereafter this action was commenced, the complaint setting forth the entire account previously involved, and also exhibiting other deposits which, so far as deemed material were made as follows: July 28, 1899, $2,000 and $53.33 respectively, and May 20, 1905, $182.84, amounting in all to $44,180.94, on account of which the plaintiff had received only $37,164.92, thus leaving in the bank, as due him $7,016.02, for which judgment was demanded, with interest on $6,883.18 thereof, from August 22, 1904, when demand therefor is asserted to have been made. The answer denied each allegation of the complaint, except as otherwise admitted; interposed the plea of res judicata to so much of the account as was embraced in the former action; alleged as counterclaims that on October 1, 1902, the plaintiff executed to the defendant a promissory note for $2,000, payable in six months, with interest after maturity at the rate of 8 per cent. per annum, upon which no payments had been made, except the interest to January 1, 1904; and that on June 27, 1904, he gave to the bank another note for $250, payable in three months, with interest from date at the rate of 10 per cent. per annum, no part of which had been paid; that each of the notes stipulated for the payment of reasonable attorney's fees, in case action were instituted to collect the sum so specified, or any part thereof, and that $200 and $25, respectively, constitute suitable compensation for that purpose. The answer further set forth the deposits made by the plaintiff from November 28, 1898, when a settlement is alleged to have been had, to May 20, 1905, exhibited the moneys paid out on account thereof, and averred that, to discharge the amount of the promissory note for $2,000, the remainder in the bank to plaintiff's credit was insufficient by $14.74. For this latter balance, for the amount of the $250 note, for the further sum of $225, as attorney's fees, and for the costs and disbursements of the action, judgment was demanded.
The reply denied the allegations of new matter in the answer, and averred that the plaintiff was unable to read or write, except to inscribe his signature; that the defendant's cashier represented to him that, in order to withdraw his money from the bank, vouchers were required, whereupon he wrote his name upon such memoranda as the cashier prepared for him, which writings proved to be promissory notes, setting forth a list thereof, which includes the notes mentioned in the answer; that at the time such instruments were severally given, the plaintiff had large deposits with the defendant, in excess of the sums expressed in the notes for $2,000 and $250, respectively, for the execution of which no consideration existed; and that the defendant had notice and knowledge of the manner in which such notes were executed and of the purpose for which they were given. The cause, being at issue and involving a long account, was referred to J.W. Knowles, who took the testimony, and on March 18, 1907, pursuant to the order of submission, filed a report, which shows that he found the facts as alleged in the answer, except that there was due from the defendant to the plaintiff $236.28, as determined by the court in the former action ( Boothe v. Farmers' Nat. Bank, 47 Or. 302, 83 P. 785), with interest thereon from January 25, 1905, when the balance was ascertained, amounting to $267.14; that there was thereafter left with the bank, by or for the plaintiff, subject to check, including the deposits, specified in the complaint, of $2,000, $53.33, and $182.84, respectively, the further sum of $13,944.19, on account of which the plaintiff had received $11,619.60, thus leaving on deposit to his credit, when the answer herein was filed, $2,324.59; that prior to the commencement of this action the plaintiff never requested the defendant to apply any of the deposits, for which he had credit at the bank, upon either of the promissory notes mentioned in the answer, the validity of which he contested, thereby necessitating a resort to legal measures to enforce the collection thereof, and rendering him liable for the reasonable attorney's fees of $200 and $25, respectively; that the $2,000 note amounted to $2,513.32, and the $250 note to $318.02, and with the attorney's fees specified aggregated $3,056.34, which sum was due from the plaintiff to the defendant; that of the moneys alleged in the complaint to have been left with the bank, two items consisted of a certificate of deposit, issued by the defendant to the plaintiff November 28, 1898, for $2,000, and when canceled July 28, 1899, the accumulated interest was $53.33, for which sum the plaintiff was entitled to interest at the rate of 6 per cent. per annum from August 27, 1904, amounting to $2,367.77; that in addition to the $182.84, alleged in the complaint to have been deposited May 20, 1905, the plaintiff was entitled to the further sum of $267.14, as hereinbefore stated, aggregating $2,817.75, thereby leaving due from the plaintiff to the defendant $238.59, for which remainder the referee found, as a conclusion of law, that the defendant was entitled to a judgment.
The court upon objection to the report disallowed the attorney's fees of $200 and $25, respectively, rejected the award to the plaintiff of interest on $2,053.33, and found that the larger note was given without consideration, and, in effect, was intended by the parties as a voucher whereby the plaintiff withdrew of his own money $2,000. As conclusions of law, the court found that the plaintiff was entitled to recover the sum ascertained at the former trial, and interest thereon, amounting to $276.33, the deposit of May 20, 1905, $182.84, and the accumulated interest on a certificate of deposit, $53.33, aggregating $512.50, less, however, the amount of the smaller note, $310.41, leaving due the plaintiff $202.09, for which remainder judgment was rendered, and the defendant appeals.
J.D. Slater, for appellant.
Leroy Lomax, for respondent.
MOORE, J. (after stating the facts as above).
The court was requested to modify one of its findings of fact so as to change the date February 20th to the 10th of that month, June 20th to the 30th of that month, and also to alter the year 1901 to the years 1902 and 1903, when certain deposits were made by the plaintiff, as follows: February 10 1902, $2,000; June 30, 1902, $1,000; July 18, 1902, $2,500; June 9, 1903, $2,615.08; July 6, 1903, $76.71; and August 14, 1903, $150--but, the motion having been denied, it is maintained that error was thereby committed. The pleadings admit that the sums of money thus stated were placed in the bank by or for the plaintiff on the several dates specified in the motion. Where there is no issue in respect to a particular fact, it is usually unnecessary for any finding to be made in relation thereto. Moody v. Richards, 29 Or. 282, 45 P. 777; Jennings v. Frazier, 46 Or. 470, 80 P. 1011. The court having been requested, however, to amend its findings so as to conform to the facts admitted, a failure to comply therewith constitutes error, unless the finding as made could not have been detrimental to the...
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